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Wall of Separation

Petition Interdiction: Tenn. Legislator Seeks To Make It A Crime To Protest Church-State Violations

A Tennessee legislator is trying to set up a series of hurdles so complex, formidable and intimidating that no one in his or her right mind would even think about filing a church-state lawsuit.

Whenever I hear someone talking about the alleged shift in American politics that is supposedly turning the country away from far-right politics, I have to pause, collect myself and say politely, “We’re not quite there yet.”

If you don’t believe me, take a look at what’s going in some of the states.

It’s estimated that 24 state legislatures have been strongly influenced by an unholy partnership of Religious Right groups and Tea Party activists. Some awfully strange legislation is surfacing in those states.

Consider Tennessee. There, state Sen. Randy McNally has introduced SB 965, which attempts to address the issue of prayers before meetings of local government bodies.

McNally’s bill, scheduled for a hearing in the Senate Judiciary Committee tomorrow, purports to afford local governments “an opportunity to implement a written policy governing invocation practices before a lawsuit is filed on establishment clause grounds.…”

That may sound harmless. After all, who can be against a written policy?

But what McNally is really trying to do is set up a series of hurdles so complex, formidable and intimidating that no one in his or her right mind would even think about filing a church-state lawsuit.

In a torrent of legalese, McNally would require citizens who are interested in filing a church-state lawsuit to enter in a cumbersome and time-consuming back-and-forth dialogue with local officials prior to going to court. If they fail to do that, their lawsuit would be automatically dismissed.

Just to be clear, it’s Americans United policy to send a letter any time we believe a government entity is in violation of the First Amendment. Our hope is that by explaining where local officials have gone wrong, we can persuade them to make changes and settle the matter outside of court.

We do that because it’s the right thing to do. It just makes sense. But there is nothing in federal law that requires us to do it. I don’t believe a state legislator in Tennessee can draft new rules for how cases are filed in federal courts.

There is also a section that makes it a misdemeanor for anyone to communicate in writing “with a local government unit or local public servant in a repetitious manner” with the intent to persuade them to change policies like prayer before meetings if such letters include “a threat of initiating legal action against the local government or local public servant challenging the particular policy, practice, action or custom.”

Such communications would be punishable by a fine of $2,500.

So, if a bunch of citizens in a town in Tennessee decide a launch a petition drive or even a letter-writing campaign to persuade the local city council to stop opening its meeting with prayers and even mention that litigation is possibility, they would be in violation of the law!

Or this: Let’s say Americans United’s Legal Department sends a letter to officials in a community about their prayer policy, and they ignore it. So we send another. Let’s say they ignore that one too, so we send a third. Are we guilty of “repetitious” communications?

Hate to break it to you, Sen. McNally, but the right of people to communicate with their government is protected. It’s right there in the First Amendment, which protects, among other things, the right “to petition the Government for a redress of grievances.”

The intent of this bill is clear: It is designed to punish people for exercising their constitutional rights, which include the right to communicate with lawmakers and ask for changes in policy and the right to file lawsuits when they won’t listen.

Americans United’s Legislative Department has prepared a letter on behalf of our Tennessee Chapter advising legislators of the many problems with this bill. Our hope is that they will read it, see that this measure is deeply flawed and send it into the black hole where bad legislative proposals go to die.

I do hope we don’t have to send this letter more than once. After all, we wouldn’t want to be accused of mailing “repetitious” communications.